A Capehart Scatchard Blog

Law Suit Improperly Filed in Civil Court Could Not Be Transferred to Division of Workers’ Compensation

By on May 19, 2014 in Uncategorized with 0 Comments

Sometimes attorneys, unfamiliar with workers’ compensation, file civil suits that really belong in the Division of Workers’ Compensation.  That was the situation in Garofalo v. East Whitehouse Fire Department, A-3649-12T2, A-4687-12T2, (App.Div.March 28, 2014).

The case began with an injury on March 11, 2009 to Anthony Garofalo, who was a podiatric surgeon in New York who also worked as a volunteer firefighter for the East Whitehouse Fire Department.  Mr. Garofalo fell on the stairs at the East Whitehouse Fire Department due to an improperly installed runner.  He tore his right distal bicep and injured his elbow.  He was at the firehouse for a weekly drill night.  The fire department’s compensation carrier paid for the hospital and other medical bills, with the last payment taking place on March 26, 2009.

On March 8, 2011, within two years of the last compensation payment, Garofalo sued the fire department in civil court for negligence.  The fire department moved to dismiss the case on the grounds that the civil suit was barred by the exclusive remedy provision in workers’ compensation.  In other words, the fire department said that Garofalo’s only remedy was in the Division of Workers’ Compensation as one cannot sue one’s employer, and Garofalo was a volunteer of the fire department at the time of injury.

After the motion to dismiss was filed by the fire department, Garofalo’s attorney asked the fire department if it would consent to remove the case to the Division of Workers’ Compensation.  The department declined.  The motion judge dismissed the case on March 20, 2012 and said that there is no authority for a civil court to transfer a law suit to the Division of Workers’ Compensation.  Garofalo did not appeal the dismissal of his civil suit.

On April 17, 2012, some three years after the work injury, Garofalo filed a claim petition in the Division of Workers’ Compensation.  The Judge of Compensation eventually dismissed that claim petition for failure to file within two years of the last payment of compensation.

Plaintiff appealed to the Appellate Division and ultimately attempted to argue that the original law suit filed in 2011 should have been transferred to the Division of Workers’ Compensation.  He relied on the case of Townsend v. Great Adventure, 178 N.J. Super. 508 (App. Div. 1981).  That case did involve a transfer to the Division of Workers’ Compensation, but the Appellate Division distinguished Townsend because the injured worker in Townsend filed simultaneously a civil claim and a workers’ compensation claim.  In this case, no workers’ compensation claim was filed until three years after the accident, over a year after the civil suit had been filed.

The Court rejected the argument of Garofalo both for failing to file the workers’ compensation petition at the same time as the civil suit was filed, but also for failing to appeal the original dismissal of his civil law suit.  The lesson here is simple: when a lawyer is in doubt about whether someone is acting as an employee, it is wise to file both a civil suit and a workers’ compensation claim petition, thereby protecting the employee’s rights in the event that the civil suit is dismissed.



About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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